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ittigi Veerabhadrappa, Mine Owner, Fort, Bellary Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 227-D of 1956
Judge
Reported inAIR1959P& H54
ActsMines and Minerals (Regulation and Development) Act, 1948 - Sections 5; Constitution of India - Article 226; Mines and Minerals (Regulation and Development) (Amendment) Act, 1957 - Sections 5; ;Mines and Minerals (Regulation and Development) Rules - 17A and 57
Appellantittigi Veerabhadrappa, Mine Owner, Fort, Bellary
RespondentThe Union of India (Uoi) and ors.
Appellant Advocate M.K. Nambayar,; Rameshwar Nath and; S.N. Andley, Adv
Respondent Advocate Jindra Lal and; Yogeshwar Dayal, Advs.
Cases ReferredNagendra Nath Bora v. Commr. of Hills Div
Excerpt:
.....taking into consideration the petitioner's as well as the respondent's applications. (2) where a state government has failed to dispose of an application for the grant or renewal of a certificate of approval or prospecting license or a mining lease within the period prescribed therefor in these rules such failure shall, for the purpose of these rules, be deemed to be a refusal to grant or renew such certificate, license or lease, as the case may be, and any person aggrieved by such failure may, within two months of the expiry of the period aforesaid, apply to the central government for reviewing the case. (3) an application for review under this rule may be admitted after the period of limitation prescribed under this rule, if the applicant satisfied the central government that he had..........review petition to the madras government (or comments and called for the records and in reply the state government stated that the review petition may be dismissed inter alia on the ground that kalgani sannabasappa respondent's application had been over-looked when granting the prospecting licence to the petitioner.the central government held that rule 17a was not applicable to the case but directed the mysore government (now in charge of the matter) to take appropriate action after taking into consideration the petitioner's as well as the respondent's applications. this order was passed on 13th of may, 1955 and was communicated to the petitioner in due course.in pursuance of this order the state government took proceedings to determine as to which of the rival claimants should be.....
Judgment:

Bishan Narain, J.

1. Ittigi Veerabhadrappa has filed this petition under Article 226 of the Constitution challenging 'the validity of the order rejecting petitioner's application for a prospecting licence to mine iron and manganese Ores and granting it to Kal-gani Sannabasappa, hereinafter called the respondent, under the Mines and Minerals (Regulation and Development) Act, 1948.

2. The facts relevant for decision of this petition are not in dispute and have been stated by the learned counsel for the petitioner thus: On 20th of June, 1952 the respondent applied for prospecting licence for survey Nos. 90 and 91 of Bela-gal village Bellary Taluk. On 1st of July, 1952, Hie petitioner made an application to prospect survey No. 91 for two years. Ignoring the respondent's application the Government of Madras sanctioned the grant of this licence to the petitioner by order dated the 20th of November, 1952.

Exhaustive rules have been framed under the Mines and Minerals (Regulatipn and Development) Act. Under Rule 20 such a grant had to be entered in a register maintained for the purpose and there was at that time no rule for executing a formal document incorporating the grant of licence and the conditions on which it had been granted. On 27th of February, 1953, Rule 17-A was added laying down that such a formal document must be executed within three months of its grant and if this is not done then the order granting the licence is liable to be revoked unless the authority concerned is satisfied that the applicant is not responsible for the delay.

As no such document was executed in this case the Government of Madras revoked the order and cancelled the licence by order dated the 18th June, 1953 and further directed the Collector to submit the respondent's application for orders of the Government apparently in view of the respondent's application dated 20th of June, 1952. The petitioner on 17th of August, 1953, applied to the Central Government under Rule 57 for review of this order on the ground that Rule 17-A having been subsequently added did not apply to the case.

The Central Government forwarded a copy of the review petition to the Madras Government (or comments and called for the records and in reply the State Government stated that the review petition may be dismissed inter alia on the ground that Kalgani Sannabasappa respondent's application had been over-looked when granting the prospecting licence to the petitioner.

The Central Government held that Rule 17A was not applicable to the case but directed the Mysore Government (now in charge of the matter) to take appropriate action after taking into consideration the petitioner's as well as the respondent's applications. This order was passed on 13th of May, 1955 and was communicated to the petitioner in due course.

In pursuance of this order the State Government took proceedings to determine as to which of the rival claimants should be granted this prospecting licence and in a lengthy order dated the 2nd of March, 1956, decided the matter in respondent's favour. The petitioner thereupon filed a review petition to the Central Government which was rejected on 6th of October, 1956, hence this petition.

3. The learned counsel for the petitioner has challenged the validity of both the orders passed by the Central Government under Rule 59. The first Order of 13th May, 1955 is stated to be invalid On the ground that it travelled beyond the scope of the-review petition then pending before it and also because no opportunity was afforded to the petitioner to submit his point of view to the Central Government. The second order is challenged only on the ground that the petitioner was not given any hearing.

4. I will first deal 'with the first order of the Central Government. Before starting the arguments the learned counsel invited my attention to Rules 57 and 59 made under the Mines and Minerals (Regulation and Development) Act, reading : --

'57. Application for Review -- (1) Where a State Government passes an order as under--

(i) refusing to grant a certificate of approval, prospecting license or mining lease;

(ii) refusing to renew a certificate of approval, prospecting license or mining lease;

(iii) cancelling a prospecting license or mining lease;

(iv) refusing to permit transfer of a prospecting license or any right, title or interest therein under Clause (iv) of Sub-rule (1) of Rule 23, or a mining lease or any right, title or interest therein under Rule 37;

it shall communicate in writing the reasons for such order to the person against whom the order is passed and any person aggrieved by such order may, within two months of the date of receipt of such order, apply to the Central Government for reviewing die same.

(2) Where a State Government has failed to dispose of an application for the grant or renewal of a certificate of approval or prospecting license or a mining lease within the period prescribed therefor in these Rules such failure shall, for the purpose of these rules, be deemed to be a refusal to grant or renew such certificate, license or lease, as the case may be, and any person aggrieved by such failure may, within two months of the expiry of the period aforesaid, apply to the Central Government for reviewing the case.

(3) An application for review under this rule may be admitted after the period of limitation prescribed under this rule, if the applicant satisfied the Central Government that he had sufficient cause for not making the application' within the said period.

'59. Review.-- Upon receipt of such application, the Central Government may, if it thinks fit, call for the relevant records and other information from the State Government, and after considering any explanation that may be offered by the State Government, cancel or revise the order of the State Government or pass such order as the Central Government may deem just and proper'.

The learned counsel then contended that when a review application is filed against cancellation of a prospecting license then the Central Government can only set aside or refuse to set aside the' cancellation order and cannot proceed to direct the State Government to reconsider the matter de novo. In support of this contention the learned counsel relied on R. v. Minister of Transport, U.P. Minister Services Ltd., Ex parte, (1934) 1 KB 277.

In the English case, Up minister Services. Limit-ed applied under Section 72 of the Road Traffic Act 1930, for continuation of a road service license along a certain route and for a backing of the license. These applications were granted subject to certain conditions. The Company appealed to the Transport Minister against the imposition of those conditions ' and rival Company appealed against the granting of the license and backing on the ground that there was no public need for the service.

The Transport Minister made no order on the Company's appeals but in the other appeal he held that the Company had been operating the service illegally and improperly and directed the authorities concerned to revoke the, license and backing granted to the Company as soon as adequate provision had been made for road services on that route-On the facts it was held by the Court of Appeal that the only subject matter of the appeals was whether the license and backing had been properly granted and there was no jurisdiction to make orders for further contingent revocation.

In the course of judgment it was observed by Lord Russell of Killowen that the power to revoke had been given to the Commissioner to be exercised in his discretion and the Minister had no power to dictate to the Commissioner how to exercise it if and when the occasion arose.

5. It is true that the appellate powers given to the Minister in the English case it we as widely worded as the powers of review given to the Central Government but the present case is of different nature. The Central Government in spite of the State Government's request did not maintain the order of cancellation on the ground that the prospecting license had been granted to the petitioner by the Madras Government under a misapprehension and in ignorance of the fact that there was another applicant for this license.

The Central Government did not purport to take away the discretionary power vested in the State Government by the impugned order and did not direct it to cancel the petitioner's license and to give it to the respondent. All that the Central Government in the present case did was to send the ease back to the State Government to decide after taking into consideration the applications of both the applicants. This is an eminently just order and there is no scope for interference with that order in the present proceedings under Article 226 of the Constitution.

6. Moreover this order was made on 18-6-1953. The petitioner did not challenge its validity at that time. When the State Government restarted proceedings he did not challenge its power or that of the Central Government to reopen the matter. He took the chance of taking a decision on merits in his favour from the State Government. Unfortunately he failed in this effort. It is too late now for him to turn round and challenge the validity of the order passed in 1950 after the decision had gone against him. This contention of the learned counsel, therefore, fails and is overruled.

7. The learned counsel then urged that both the orders of the Central Government were void and invalid inasmuch as the petitioner was not heard at the time of the making of the first order on the point of reopening of the case on merits and the subsequent review application was decided without giving the petitioner an opportunity to put his case before it.

This matter was discussed by Kapur J. in Shivji Nathubhai v. The Union of India, ILR (1957) Punj 89 and it was held that the decision under the Mines and Minerals (Regulations and Development) Act, 1948 are merely administrative and that under Rule 59 the Central Government is not bound to adopt procedure analogous to judicial proceedings. This decision has been accepted as correct and has been followed by Falshaw J. in N.N. Anshi v. Union of India, Civil Writ No. 98 of 1957. Admittedly these decisions are against the petitioner's contentions.

8. It was, however, urged that these decisions tad become obsolete in view of the judgment of the Supreme Court in Nagendra Nath Bora v. Commr. of Hills Div, and Appeals, Assam, AIR 1958 SC 398, In this case the Supreme Court after discussing tho legal position laid down the law in these terms :

'Whether or not an administrative body or authority functions as purely administrative one or in a quasi-judicial capacity, must be determined in each case, on an examination of the relevant statute and rules framed thereunder.'

While discussing various provisions of the Eastern Bengal and Assam Excise Act (1 of 1910), their Lordships observed:

'It is true that no one has an inherent right to settlement of liquor shops, but when the Stale, by public notice, invites candidates for settlement to make their tenders, and in pursuance of such a notice, number of persons make such tenders each one makes-a claim for himself in opposition to the claims of the . others, and the public authorities concerned with the settlement have to choose from amongst them. If the choice had rested in the hands of only one authority like the District Collector on his subjective satisfaction as to the fitness of a particular candidate without his orders being amenable to an appeal or appeals or revision, the position may have been different. But Section 9 of the Act has laid down a regular hierarchy of authorities, one above the other, with the right of hearing appeals or revisions. Though the-Act and the rules do not, in express terms, require reasoned orders to be recorded, yet, in the context of the subject-matter of the rules, it becomes necessary for the several authorities to pass what are called 'speaking orders.' Where there is a right vested in an authority created by statute, be it administrative or quasi-judicial, to hear appeals and revisions, it, becomes its duty to hear judicially, that it to say, in. an objective manner, impartially and after giving reasonable opportunity to the parties concerned in the dispute, to place their respective cases before it.'

It is on this passage of the judgment that the learned counsel for the petitioner in the present case has relied. He also pointed out that their Lordships while deciding this matter took into consideration the fact that under the Excise Rules the appeals and revisions were to be filed by adopting a procedure which proxi-mated to the procedure adopted by Court of law in-such cases.

9. I am, however, of the opinion that this decision of the Supreme Court has no application to the present case. In that case the Supreme Court CON- strued various provisions of the Excise Act which affect a citizen's right to carry on a trade or business, It is true that this right in view of its effect on public health and morals has always been subject to strict control in all civilized countries and it is liable on-those grounds to complete prohibition but that does not mean that the Excise Act does not affect a citizen's right to carry on trade in commodities mentioned therein.

Therefore these provisions are to be construed in a way that a person whose right is so restricted' should get an opportunity to place his point of view-before the authorities. No such consideration arises in the present case which relates to regulation of development of minerals in public interest. These regulations, do not affect any guaranteed right of any citizen or this country.

These regulations embodied in the Mines and Minerals (Regulation and Development) Act of 1948-and now in the Mines and Minerals (Regulation and' Development) Act of 1957 apply equally to minerals vesting in the Government or belonging to private persons. The rules made under these enactments lay down that prospecting licenses or lease to exploit minerals can be granted only to holders of approval certificate which is granted when the Government is: satisfied that the person concerned inter alia has the necessary technical qualification and mining experience.

Chapter III and Chapter IV of the Rules lay down certain rules which the Government should observe when granting prospecting license or mining leases. Chapter V deals with mineral concessions by private individuals. Rules 57 and 59 apply only to-mineral concessions granted by the Government. Therefore in substance the Act and the Rules only regulate an owner's right, be it the Government or a private person, to grant a mining concession. As' 'stated above, no person has a right to the granting of mining concessions. It, therefore, follows that the considerations applicable in Excise cases do not necessarily apply to mining concessions.

10. Moreover in AIR 1958 SC 398, the provisions of the Excise Act laid down the procedure for filing appeals and revisions but did not lay down any procedure which has to be observed while hearing appeals and revisions, this is not so in the present

case. Rules 57 and 58 lay down the procedure for filing a review application and Rule 59 lays down the procedure for hearing it. Under this Rule 59 the Central Government, if it thinks fit, has to call for the relevant record and also can obtain other information from the State Government.

It has then to consider any explanation offered by the State Government. This procedure implies that petitioner's reasons requiring review of the order of the State Government are also sent to it because otherwise it would not be in a position to give any information in the right perspective nor could it offer any explanation. It appears to me that this procedure excludes the right of a petitioner to be heard in person as it implies that the State Government is not to be so heard.

The nature of the enactment under consideration is not such as to make it obligatory on the part of the Central Government to adopt the regular form of legal procedure as obtainable in Courts of law. All that the Central Government has to decide is whether the State Government has when granting the mining concession observed the rules and whether it has granted it to a person who can put it to best use.

Rule 59 in my opinion provides a special procedure for deciding review petitions and it cannot be said that this procedure is unsuitable for the purpose which it is meant, to achieve or that it is not just to all the persons who are interested in mining concessions. For all these reasons I am of the opinion that the decision reported in AIR 1958 SC 398 has no application to the present case.

11. On the merits also there is no substance in the petition. Whether the petitioner or the respondent applied first for this prospecting license is a matter which has to be decided by the grantor of the license and not by this Court under Article 226 of the Constitution. Admittedly the respondent applied first for the license on 20-6-1952, and his subsequent application has been held to be in continuation of the first application or a mere surplusage. A decision on such a point depends on facts and circumstances of each case and it is not open to scrutiny by this Court in these proceedings.

12. Finally in my opinion Article 226 of the Constitution is not intended to grant the relief sought by the petitioner in the present case. In substance the petitioner's claim is that the Government wrongly cancelled the mining concession previously granted to be or in the alternative the Government wrongly Refused to grant him the prospecting license.

This amounts to a claim that the license in question which had already been granted to the petitioner must be specifically enforced against the Government or in the alternative the Government must be ordered to grant a license to him. This relief should more appropriately be subject-matter of a regular suit. If the Government wrongly refuses to grant or continue a license then the petitioner's real remedy is to seek damages or specific enforcement of the agreement. This relief should be sought in a regular civil suit and not by means of a petition under Article 226 of the Constitution.

13. For all these reasons, I see no force in this petition and dismiss it with costs. Counsel's fee Rs. 100/-.


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